Official Opinion 97-5

February 14, 1997

To:

Commissioner Georgia Department of Human Resources

Re:

Parties to a civil action to establish paternity are not entitled to a trial by jury.

You have requested my official opinion as to whether parties to a civil action brought to establish paternity have a right to a trial by jury. After reviewing the Georgia Constitution and the statutory provisions relevant to proceedings to establish paternity, it is my opinion that such a right does not exist.

The right to a jury trial may exist pursuant to either a statutory or constitutional provision. If the right to a jury trial in a civil action brought for the establishment of paternity is secured by statute, then reliance on the Georgia Constitution is unnecessary. Thus, this analysis begins with a discussion of the statutes relevant to an action to establish paternity.

The Child Support Recovery Act, O.C.G.A. §§ 19-11-1 through 19-11-30, and the Determination of Paternity provisions of the Georgia Code, O.C.G.A. §§ 19-7-40 through 19-7-53, are the two potential sources of a statutory right to a jury trial in a civil paternity action. Neither of these statutory sources provides for a right to a jury trial in an action brought to establish paternity.

The actions brought by the Georgia Department of Human Resources (hereinafter "Department") to establish paternity arise under the Child Support Recovery Act, O.C.G.A. §§ 19-11-1 through 19-11-30. The Department is authorized to bring an action to establish paternity and recover child support whenever a dependent minor child is a recipient of public assistance. The action is brought in the name of the child for the use of the Department. See O.C.G.A. §§ 19-11-7, 19-11-13. Under O.C.G.A. § 19-11-13, captioned "Determination of paternity," there is no mention made of a statutory right to a jury trial. Indeed, nothing in the Child Support Recovery Act suggests such a right. See O.C.G.A. § 19-11-1 et seq. Accordingly, no statutory right to a trial by jury exists in a civil action for the establishment of paternity.

Also relevant to this inquiry are the Determination of Paternity provisions of the Code, O.C.G.A. §§ 19-7-40 through 19-7-53. It is my opinion that no statutory right to a jury trial exists under these provisions either. Official Code of Georgia Annotated § 19-7-49, referring to jury instructions, states "[w]here the issue of parentage is to be decided by a jury," which leads to the logical conclusion that a jury is not required in all cases. Accordingly, a question arises as to when a jury would be available. As explained below a jury would only be available when a court orders the use of a jury, not when parties demand a jury as a matter of right.

Actions under the Determination of Paternity Code provisions are civil actions governed by the rules of civil procedure. O.C.G.A. § 19-7-47. The Civil Practice Act contains two Code Sections regarding jury trials. See O.C.G.A. §§ 9-11-38, 9-11-39. Official Code of Georgia Annotated § 9-11-38 mirrors the Georgia Constitution in that the right to trial by jury is preserved inviolate where declared so by the Constitution or given by a statute of the state. Since there is no constitutional right to a jury trial as discussed infra, and no express statutory right under the Child Support Recovery Act or the Determination of Paternity Code provisions, it is necessary to look to O.C.G.A. § 9-11-39. That Code Section provides that "[i]n all actions not triable of right by a jury, or where jury trial has been expressly waived, the court may nevertheless order a trial with a jury whose verdict will have the same effect as if trial by jury had been a matter of right or had not been waived." O.C.G.A. § 9-11-39(b). Through this means, by order of court, a need for jury instructions would arise and O.C.G.A. § 19-7-49 would apply.

The only source of a statutory right to a jury trial exists in O.C.G.A. § 19-11-66, which is limited in application to actions brought pursuant to the Uniform Reciprocal Enforcement of Support Act (hereinafter "URESA"). URESA provides a procedure by which child support can be collected in another state without compelling a custodial parent residing in a distant state to incur excessive transportation and litigation expenses. See Department of Human Resources v. Westmoreland, 210 Ga. App. 603 (1993); Department of Human Resources v. McCormick, 208 Ga. App. 751 (1993). URESA does not provide a right to a jury trial in an action to establish paternity, but rather O.C.G.A. § 19-11-66 provides for a jury trial, if demanded, when paternity is asserted as a defense to an action to enforce a support obligation. O.C.G.A. § 19-11-66.

There exists no statutory right to trial by jury under either the Child Support Recovery Act or the Determination of Paternity Code provisions. Neither act contains express provisions mandating a right to trial by jury. The Code provisions regarding jury instructions only apply in cases where the court decides that it is desirable to have the issue decided by a jury, but the important point is that the parties do not have a statutory right to demand a trial by jury except in those support actions brought under URESA where paternity is asserted as a defense to the alleged support obligation.

Having found no statutory right to a trial by jury in actions to establish paternity, one must determine if such a right is secured by the provisions of the Georgia Constitution. Article I, Sec. I, Para. XI(a) of the Georgia Constitution of 1983 provides that "[t]he right to trial by jury shall remain inviolate." This constitutional provision has appeared in substantially the same form in every constitution of this state. See Ga. Const. 1976, Art. VI, Sec. XV, Para. I; Ga. Const. 1945, Art. VI, Sec. XVI, Para. I; Wright v. Davis, 184 Ga. 846, 852 (1937). The statement contained in this provision that the right to trial by jury "shall remain inviolate" refers to the right as it existed at common law at the time of the incorporation of the provision in the constitution. Wright, 184 Ga. at 852. There need not be a jury trial in all cases, just those cases which were afforded the right by the constitution as it exited at the time of its adoption. Flint River Steamboat Co. v. Foster, 5 Ga. 194, 207-208 (1848). As a result, the phrase means that the right to trial by jury as it existed in England should be inviolate or unaltered. Wright, 184 Ga. at 852. In addition, all cases triable without a jury

prior to the adoption of the constitution may still be so tried. Beasley v. Burt, 201 Ga. 144, 151 (1946). Accordingly, absent any provision in the organic law of the state, any right to jury trial in Georgia must be governed by the same rules as prevailed in England at the time Georgia adopted its constitution. Wright, 184 Ga. at 852. Thus, a historical inquiry into proceedings for the establishment of paternity is necessary to determine whether it was among the class of cases afforded the right to trial by jury in Georgia at the time of the adoption of our constitution.

In 1793, the General Assembly enacted Georgia's first bastardy statute in "An Act respecting Bastardy, and other immoralities." Cobb's Digest 148 (1851). Bastardy statutes were the predecessor of the state's paternity determination statutory provisions. What is striking about the Georgia statute is its similarity to the English law which preceded it. Under the Act of 1793 a justice of the peace could issue a warrant to oblige the offender to be brought before him to give security for the support and education of the child. Act of 1793, as printed in, Cobb's Digest 148, 148 (1851). Although the Act of 1793 later provides that the offender may be bound over to superior court should he fail to give security, the initial determination of paternity was made by the justice of the peace. Thus, the proceeding was initiated as a civil action, but would become criminal if the offender refused to support the child. See Worthington v. Worthington, 250 Ga. 730, 734 (1983); Washington v. Martin, 75 Ga. App. 466, 468 (1947).

The bastardy proceeding in Georgia had two distinct phases. The first phase before the justice of the peace was civil. See Locke v. State, 3 Ga. 534, 537 (1847). Upon the hearing of the matter, the justice of the peace inquired into two questions: (1) was the defendant the father of the child; and (2) was the child likely to become a charge on the county? Robert S. Stubbs II, A Summary of the Georgia Law of Children § 19, at 40 (1969). If the justice of the peace determined both questions in the affirmative, he then required the defendant to post a sufficient security for the child's maintenance and education. Failure of the defendant to do so would result in his commitment or admission to bail pending action of the district attorney or grand jury on a bastardy charge. Id. at 41-42. However, this was the limit of the justice's authority. A finding by the justice that the defendant was the father of a child that was likely to become chargeable to the county did not constitute a criminal case against the putative father. A formal charge to initiate the prosecution was required. Id. at 46.

The Act of 1793 did not define the criminal charge of bastardy. Locke v. State, 3 Ga. 534, 536 (1847). The primary object of the Act of 1793 was to protect the county from suffering the cost of supporting illegitimate children. Locke, 3 Ga. at 536. Thus, any criminal action which was instituted against the defendant necessarily depended upon the penal provision defined in the charge of bastardy for its force and effect. See Locke, 3 Ga. at 536. The criminal action was the second phase of the bastardy enforcement scheme. The criminal phase of the bastardy proceeding was conducted before a jury. Since no jury was available during the first phase of the bastardy proceeding, the second phase in which a jury trial was available must be the source of any claimed right to a jury trial. However, bastardy was not criminalized until 1816 (see Lamar's 1810-1819 Compilation of Ga. Laws 564, 595 (1821)) because the first Penal Code, (Vol. III, 540), never went into operation. See Prince's Digest 619 (1837); Cobb's Digest 778 (1851). The Penal Code of December 19, 1816, went into effect on February 24, 1817, by proclamation of the Executive. See Prince's Digest 619 (1837); Cobb's Digest 778 (1851).

To summarize, no civil action for the establishment of paternity existed prior to the Act of 1793. The civil component of the bastardy proceeding which was created by the Act of 1793 did not provide for a trial by jury, but was conducted before a justice of the peace. The crime of bastardy did not exist prior to 1816. Since the General Assembly could pass no ex post facto law under the Georgia Constitution of 1798, the 1816 law did not relate back. Thus, no right to trial by jury existed for a bastardy charge until 1816, subsequent to the adoption of the Georgia Constitution, and then the right only existed for criminal, not civil, proceedings.

Although the General Assembly adopted the common law and statute law of England in "An Act for reviving and enforcing certain Laws therein mentioned" on February 25, 1784, a review of English law as it existed at the time of the adoption of the Georgia Constitution reveals that English law did not provide for a jury trial in proceedings for the establishment of paternity. See Cobb's Digest 721 (1851) (for text of Act). In 1576, Parliament enacted "An act for setting the poor on work and avoiding idleness" which provided in part for the support of illegitimate children. See 18 Eliz., ch. 3, § 2 (1576) (Eng.), as reprinted in 6 Statutes At Large of England 311

(1763). According to the provisions of that act:

Two justices of the peace (whereof one to be of the quorum, in or next unto the limits where the parish church, within which parish such bastard shall be born; upon examination of the cause and circumstance) shall and may be their discretion take order, as well for the punishment of the mother and reputed father of such bastard child, as also for the better relief of every such parish in part or in all; (3) and shall and may likewise by like discretion take order for the keeping of every such bastard child, by charging such mother or reputed father, with the payment of money weekly or other sustentation for the relief of such child, in such wise as they shall think meet and convenient; (4) and if after the same order subscribed under their hands, any of the said persons, . . Shall not for their part observe and perform the said order; that then every such party so making default in not performing of the said order, to be committed to ward to the common joal [sic].

According to the express terms of the statute, the matter was heard by the justices of the peace, who after considering the cause and circumstances, entered an order. No right to jury trial was afforded under the provisions of the statute. See id.

Parliament next addressed the subject of bastardy in 1609. In "An act for the due execution of divers laws and statutes heretofore made against rogues, vagabonds and sturdy beggars, and other lewd and idle persons." 7 Jac., ch. 4, § 7 (1609) (Eng.), as reprinted in 7 Statutes at Large of England 225 (1763), Parliament established a punishment for lewd women who caused the realm to suffer the support of their illegitimate children.

In 1627, Parliament again acted with respect to bastardy proceedings. In "An Act for continuance and repeal of divers statutes," 3 Car., ch. 4, § 15 (1627) (Eng.), as reprinted in 7 Statutes at Large of England 327 (1763), Parliament clarified the role of the justice of the peace as provided in the Act of 18 Eliz., ch. 3, § 2 (1576). The Act provided "that all justices

of the peace within their several limits and precincts, and in their several sessions, may do and execute all things concerning that part of the said statute, that by justices of the peace in the several counties are by the said statute limited to be done," 3 Car., ch. 4, § 15 (1627) (Eng.), as reprinted in 7 Statutes at Large of England 327 (1763). This clarification apparently limits the consideration of the bastardy proceedings to justices of the peace, leaving little doubt that jury consideration was not appropriate.

Parliament expanded the Act of 18 Eliz., ch. 3 § 2 (1576) in "An act for the better relief of the poor of this kingdom." 13 & 14 Car. 2, ch. 12, § 19 (1662) (Eng.), as reprinted in 8 Statutes at Large of England 101 (1763). In this act, Parliament empowered the justices of the peace to order the church wardens and overseers of the parish where the bastard child was born to seize the property of any putative father who departed the parish and to dispose of it by sale or otherwise for support of the child. Id. No mention is made of a right to jury trial.

The final pronouncement by Parliament on the subject of bastardy prior to the adoption of the Georgia Constitution occurred in 1733. In that year, Parliament enacted "an act for the relief of parishes and other places from such charges as may arise from bastard children born within the same." 6 Geo. 2, ch. 31 (1733) (Eng.), as reprinted in 16 Statutes at Large of England 425 (1763). That act provided for procedural methods of handling cases of bastardy. Of significant interest is § 3 of the act which provides,

That upon application made by any person who shall be committed to any joal [sic] or house of correction by virtue of this act, or by any person on his behalf, to any justice or justices residing in or near the limits where such parish or place shall lie, such justice or justices is and are hereby authorized and required to summon the overseer or overseers of the poor of such parish, or one or more of the substantial householders of such extraparochial place, to appear before him or them at a time and place to be mentioned in such summons, show cause why such person should not be discharged.

6 Geo. 2, ch. 31, § 3 (1733) (Eng.), as reprinted in 16 Statutes at Large of England 426 (1763). Thus, it appears that even appeals of a previous decision by a justice of the peace committing a person to jail were to be heard by a court and not by a jury.

Having reviewed English law as it existed prior to the adoption of the Georgia Constitution and finding no reference to a right to trial by jury ever being afforded in a bastardy proceeding, it would appear that no right to trial by jury existed. Accordingly a paternity proceeding does not fall within those actions to which a jury trial is preserved inviolate.

Based upon both English and Georgia authorities there is no constitutional right to a jury trial in a proceeding for the establishment of paternity for the reason that no such right existed at the time of the adoption of the Georgia Constitution. See Flint River Steamboat Co. v. Foster, 5 Ga. 194 (1848). This result does not offend public policy in that jury trials were intended initially to secure individual rights in criminal proceedings, although some civil proceedings were included. As a result, courts guard more closely any departure from, or trespass upon, trial by jury in criminal cases than in civil actions. Id. at 206.

In conclusion, no constitutional right to a jury trial exists in a civil action brought to establish paternity because no such right existed at the time of the adoption of the Georgia Constitution. In addition, there is no statutory provision which creates a right to a jury trial in a civil action brought to establish paternity.

Prepared by:

KEVIN M. O'CONNOR Assistant Attorney General

KATHERINE R. SMITH
Assistant Attorney General

There appears to be some question as to which Georgia Constitution initiates the protections of the right to trial by jury. Although the provision regarding preservation of the right appears in the Constitution of 1777, § 299, and in the Constitution of 1789, § 338, the Supreme Court has in the past looked to the Constitution of 1798, § 406, as the source of the right. See Flint River Steamboat Co. v. Foster, 5 Ga. 194 (1848); Walter McElreath, A Treatise on the Constitution of Georgia 240, 248, 265 (1912).